Crime and the Administration of Justice in Buenos Aires, 1785-1853

2. The Legal Architecture of Colonial Criminal Justice in Buenos Aires

KimE — University of Nebraska Press / Page 13 / AUGUST . 31 . 2005 / Crime and the Administration of Justice in Buenos Aires, 1785–1853 / Osvaldo Barreneche 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 [First Page] [13], (1) Lines: 0 to 43 ——— -3.0pt PgVar ——— Normal Page PgEnds: TEX [13], (1) 2. The Legal Architecture of Colonial Criminal Justice in Buenos Aires After the first criollo junta took control of Buenos Aires on May 25, 1810, deposing Spanish viceroy Baltasar Hidalgo de Cisneros, intense political turmoil indicated a rapid pattern of change in the former capital of theViceroyalty of the Río de la Plata. The contents of many independence-era legislation manifested criollo commitment to new rules that would profoundly transform the existing colonial legal framework.1 Nonetheless,new legal principles were neither applied immediately nor codi- fied until much later. The firstArgentine penal code,for example,was not passed until 1886. During that transitional time, judges used numerous criteria to deal with crime-related issues including the use and application of colonial criminal laws that continued long after 1810. This trend was also true for other branches of law in which a combination of medieval codes,colonial regulations,executive decrees, as well as other legal sources were applied. The obvious contradictions and overlaps of the postcolonial legal system were noticed by many people, including the U.S. commissioner in South America, John Graham, who in 1819 pointed out,“Great allowances are doubtless to be made for the circumstances of the times, and the danger and difficulty of tearing up ancient institutions, or of adapting new principles to them.”2 The administration of justice was a visible sign of shifting power relationships in Buenos Aires. The courtroom represented a place where consensus was negotiated but not always achieved during the rise of new state forms in early republican Río de la Plata. At the same time, laws, procedures, and practices from the colonial period saturated the courtrooms. Because of that saturation and the application of these laws after 1810, Argentine legal historians have emphasized post-independence continuities of the legal architecture. But recent studies centered in the countryside of Buenos Aires (campaña bonaerense) in the 1820s, demonstrate the rise of new state forms expressed, for example, through the participation of rural groups at the House of Representatives (Sala de Representantes de la Provincia de Buenos Aires). These state forms, according to Carlos Cansanelo, were defined in municipal terms during the colonial KimE — University of Nebraska Press / Page 14 / AUGUST . 31 . 2005 / Crime and the Administration of Justice in Buenos Aires, 1785–1853 / Osvaldo Barreneche 14 legal architecture of colonial criminal justice 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 [14], (2) Lines: 43 to 56 ——— 13.0pt PgVar ——— Normal Page * PgEnds: Eject [14], (2) period and expanded to a provincial level after 1820.3 Although legal historians and other scholars describe certain continuities between colonial and early republican legal systems, this observation requires a deeper analysis. It is also crucial to examine the influence and significance colonial criminal justice had on the formative period of the modern penal system in Argentina. This chapter reviews the legal architecture of the colonial penal system in Buenos Aires. It begins with the evolution of Spanish criminal law during the Middle Ages as background to the juridical enterprise of conquest in the New World followed by the development of colonial criminal law. The chapter then analyzes the colonial criminal laws in terms of penal ideas. The elaboration of new penal discourses during the Enlightenment permeated the previous criminological paradigm in Spain and its colonies. Finally, the chapter analyzes the impact of local norms in the penal system of late colonial Buenos Aires. Spanish and Colonial Criminal Law The dynamic evolution of Spanish law reflects the diversity of Iberian historical development. Celto-Iberian customary law,Roman law,andVisigothic law contributed to the judicial tradition of Spain.4 As part of efforts to unify the regions under their control,Visigothic kings compiled and integrated both Roman and Gothic laws into one text so that all their subjects...